The Legally Meaningless McCain Amendment

by Julian Ku

As Duncan notes below, President Bush has reached a deal with Senator John McCain on the so-called anti-torture bill. I agree with Duncan that as a political, and maybe as a moral matter, the bill is a victory for McCain and critics of the U.S. detainee policies. I disagree with Duncan, however, that the bill is a “legal victory”. As a legal matter, I think the bill is largely meaningless.

Human rights groups are declaring the final bill, which had been the subject of substantial negotiations, a complete victory. According to Human Rights First, “All U.S. personnel – the military, the CIA, everyone — will now be on notice that torture and abuse are illegal, and those who engage in it will be subject to prosecution. Secretary Rice toured Europe last week claiming this is U.S. policy — and now it will be a clear U.S. law. Practices like waterboarding, stress positions, sleep deprivation and hypothermia are off the table.”

Human Rights First is a great organization but they are stating their aspirations for the bill – not what the bill actually does…

(1) Torture has always been (since 1996) illegal under U.S. law, no matter where it takes place

I am distressed at how the media and otherwise smart and thoughtful lawyers have mischaracterized his bill as a ban on “torture.” Even President Bush says that this bill “prohibits” torture. But “torture”, as defined in the Convention against Torture, is already illegal under U.S. law, whether at home or abroad. This bill does not ban torture, at least as it is defined in U.S. treaty obligations and in U.S. law. This bill bans “cruel, inhuman, and degrading” treatment (CIDT), which as I will explain, is also already illegal under U.S. law.(2) CIDT overseas is already illegalAs I noted, though, Secretary Rice’s statements last week clarified and perhaps shifted U.S. policy to accomplish the same exact legal result. This bill simply codifies the policy that the U.S. government has already adopted, and which arguably was always the policy of the U.S. government (although poorly enforced).

(3) The definition of CIDT has not changedIt is far from clear that practices like “waterboarding” are off the table. The McCain bill adopts the definition of “cruel, inhuman, and degrading” treatment that was already established U.S. law – “CIDT” equals the prohibitions imposed by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. “Waterboarding” may be immoral, but it still may not violate the U.S. Constitution. The bill adopts the lowest possible standard for CIDT. The only thing the bill arguably does is clarify that this ban applies to U.S. personnel overseas, which may not have been true before. (UPDATE: Although for a more aggressive reading of the language, see this article by Andrew McCarthy who suggests that the bill may actually require Mirandizing alleged terrorists overseas.

(4) There is still no enforcement mechanismMoreover, the McCain bill itself is studiously silent on how it would be enforced (at least the last version I saw). Would alien detainees be able to bring civil suits? Does it create criminal liability? If so, what are the penalties? Who knows? The most likely mechanism are prosecutions under the Uniform Code of Military Justice, but what about CIA interrogators?

o o o

Everyone is kidding themselves if they think this is going to change the legal landscape dramatically, if at all. I think the bill is worth passing however, because I think it will push the Administration to focus on improving the implementation of the law regulating treatment of detainees. The implementation of the law has been the real problem, and hopefully, this bill will shift the focuse away from abstruse legal arguments and toward the nitty-gritty of trying to come up with effective but humane policies for interrogating detainees in the war on terrorism.

6 Responses

Errare humanum est. Sapiens men rectum iri.

Of the above, the first sentence applies to both, but the second one only to you, Prof. Ku – with admiration -, not to the Bush Administration. All of those who designed and implemented the hijacking of US and international law continue to believe they haven’t done anything wrong and, therefore, see no need to rectify.

12.16.2005
at 3:48 am EST randomopinion

Julian — I don’t agree with your characterization that converting a “policy” into law, and confirming that existing legal protections (be they by treaty or statute) apply outside of U.S. territory (something that was very much under debate) does not constitute a legal development. But even if you’re right, doesn’t the separation of powers victory of Congress over the President, whatever its content, contain a legal component?

12.16.2005
at 7:24 am EST Duncan Hollis

This bill marks a triumphant moment for the American democracy. Senator McCain deserves tremendous credit for having persuaded the President and the nation that the war on terror has to be conducted with energy and determination toward victory, but within acceptable moral and legal limits. Those critics who DO NOT WANT a U.S. victory in Iraq seized on this issue to challenge the whole effort, and, as a matter of winning strategy, they should be deprived of this rhetoric. As we lawyers know, distinctions between torture and CIDT served neither the administration nor the country, because CIDT is abhorrent anyway, and because the public (understandably) has no patience for subtle legal doctrine.

12.16.2005
at 7:28 am EST Fernando Teson

I just don’t understand your comment, Julian. You say the amendment applies only to CIDT. But there is no US statute clearly criminalizing such conduct overseas. More importantly, (i) the Bush administration takes the position that our treaty obligations don’t apply extra-territorially so the ICCPR or Torture Convention aren’t the source of a ban in their view, (ii) their “creative” interpretation of the US understanding of CIDT as synonymous with 8th Amendment jurisprudence reinforces this position, since they are that 8th Amendment prohibitions also don’t apply outside US territory.

Finally, if this is no change whatever why was Cheney fighting so hard to stop it? Did he see it as a symbolic piece of fluff? The only answer I can think of is that if Cheney et al see the Amendment as declarative of existing law, and it came out (as it should) that Cheney’s office was behind the radical loosening of standards represented by the Bybee memo and its progeny, then a prosecution for that conduct would be much more viable. But if this seems far-fetched then the only explanation is that Cheney wanted to retain a legal situation that is different from the one created by McCain’s bill.

12.16.2005
at 8:48 am EST Greg Fox

I agree with Greg. An additional nice legal issue is this: under Nuclear Tests and Eastern Greenland, it seems that Secretary of State Rice’s statements two days ago (1) that the U.S. sees itself under an obligation not to inflict CIDT, and (2) that treaty obligations bind the U.S. overseas, create themselves legally binding obligations.

12.16.2005
at 8:59 am EST Fernando Teson

Prof. Ku may want make his own anlysis of specifics, but for those of you who are asking about them, here’s the link to Marty Lederman’s take at it in Balkinization:

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